The Second Impeachment of Former President Donald J. Trump

Trump 920
Donald Trump is the only president to ever be impeached twice and only the third president to be impeached at all

Tuesday marked the beginning of the Senate trial of former President Trump’s second impeachment, the only president to ever be impeached twice and only the third president to be impeached at all. Trump, who left office on January 20 – the day Joseph R. Biden, Jr. was inaugurated as the 46th President of the United States – has been impeached by the Democratic-led House of Representatives with a single article of impeachment – incitement of insurrection. Insurrection here refers to Trump’s reckless rhetoric in the lead-up to and on the day of the Electoral College vote in Congress to confirm Biden’s victory. The Electoral College vote took place on January 6 and was brought to an unprecedented halt by a riotous and violent mob of Trump supporters, who stormed the U.S. Capitol.

The evidence supporting the charge of incitement of insurrection against Trump is very compelling. It is almost exclusively based on Trump’s own public words: on Twitter, during recorded phone calls to state election officials and at the now infamous rally in Washington, D.C. only moments before the insurrectionists stormed the U.S. Capitol, the seat of the U.S. Congress. Trump’s rhetoric that the election had been stolen from him started almost immediately following the November 3 ballot. To this day, Trump has not formally conceded the election, and even after his second impeachment, implored his legal team – who he has since replaced – to argue at the Senate impeachment trial that he had been the rightful winner of the November 3 presidential election, losing only as a result of alleged widespread election fraud in favour of Biden.

That all sounds damning, and it is, but a number of Republican elected officials have argued that it was all a storm in a teacup, seeing that in the end Trump did leave the White House and allowed for the transition to the Biden administration. These same Republicans argue that an impeachment, the sole way of removing a president from office, is a mere spectacle and partisan theatre now that Biden has been inaugurated. Both of these arguments are not only false, but also extremely dangerous and undemocratic.

Trump’s obstructionism and lies about election fraud following the November 3 election were precisely designed to erode the American public’s confidence in the democratic process. Between November 3 and January 6 many highly respected journalists and academics expressed serious and warranted concern that the U.S. was on a path of democratic backsliding. The peaceful transition of power through elections, a bedrock of modern democracies, was seriously at risk. What we saw was anything but a storm in a teacup. And if it had happened in another country, Republican elected officials would have called it out for what it was – a serious attack on democratic institutions and norms. Not holding Trump accountable for his central role in the insurrection would itself undermine democratic institutions and norms.

What about the argument that impeachment is pointless now that Trump is out of office and, anyway, unconstitutional since a former president cannot be removed from office?   While the latest iteration of Trump’s impeachment lawyers has adopted this argument, the consensus among reputable constitutional lawyers from both political parties is that constitutional law and historical precedent strongly suggest that an impeachment trial can go forward even after the elected official who is being impeached has left office.

In fact, as the Democratic impeachment managers have pointed out, letting Trump off the hook would, in effect, establish a “January exception” to impeaching a president. Put differently, an outgoing president could engage in all kinds of impeachable behaviours weeks before the inauguration of a new president on January 20 without fear of any consequences, because impeachment in that circumstance would unlikely wrap up before the transition to the incoming administration.  Impeachment after an elected official has already left office is also not pointless. If all Democratic Senators and at least 17 Republican Senators voted to convict, a second vote could be taken – with only a majority Senators voting in favour needed – to ban Trump from ever holding federal office again. As Democrats see it, preventing Trump from running again for President or any other federal elected office is important for keeping Trump from having further opportunities for undermining American democracy. 

Impeachment, therefore, is not only legal and righteous but, most importantly, essential to the re-affirmation of essential democratic norms. Republican Senators have an important decision to make at the end of this impeachment trial, whether to affirm their allegiance to a democratic system or to tie their political future to a disgraced insurrectionist. The future of American democracy is at stake and so is the survival of the modern-day Republican Party. To quote long-time Republican strategist Rick Wilson, “everything Trump touches dies”; this is the Republican Party’s last chance to sever ties to Trump, initiate the rebuilding of the Republican Party and thereby avoid its demise following this failed experiment of handing the party leadership to a former reality TV star.

 Professor René Lindstädt - Head of the School of Government.