Let me say right at the beginning that I am no fan of President Trump. I never voted for him, I will be happy to see the back of him, and I certainly don’t want him running for president again in 2024. Having said that, I will argue that the Democratic rush to impeach him a second time, just days before he leaves office, is foolish in the extreme. He is being impeached on the wrong charge, at the wrong time, and it is the wrong tactic.
First, he is being impeached on the wrong charge. There are no doubt several valid reasons to impeach him, including especially his harassing the Georgia election officials. But his speech to the mob before they marched on Congress was very clearly speech protected under the First Amendment, and the Supreme Court has ruled repeatedly on that issue over the past century. Yes, it was inflammatory. Yes, it included falsehoods. Yes, it was unfortunate, coming from a president. Yes, the mob decided after the fact to do something illegal. None of that makes his speech illegal. He incited them to march on Congress (as many other leaders have done to many other crowds for many other causes – good and bad). Read the transcript. He never asked them to break the police lines and invade the Capital building, and I doubt that he intended or expected them to do so, or that he expected the Capital Police to be so ill-prepared to control the protesters.
The Constitution give Congress the ability to impeach for “high crimes and misdemeanors,” and leaves it up to Congress to determine what fits that category. In theory they are free to decide his hairdo or taste in suits fits the criteria, but it is a bad precedent to decide that something explicitly guaranteed in the First Amendment to the Constitution, and ruled legal repeatedly by the Supreme Court, is an impeachable offense.
Second, it is the wrong time for two reasons, one legal and one pragmatic. The legal reason is that the Constitution empowers Congress to remove a president (or federal judge) in office from his/her office. It gives them no power to try a private citizen; that is reserved exclusively to the judicial branch (who probably ought to try him on a number of charges). After noon Jan 20 Trump is a private citizen, and Congress’s power to try him on the charge ends. None of this is just my idea – a number of legal and Constitutional scholars are making the same point.
The pragmatic reason is that president-elect Biden has a very difficult job ahead of him, with the nation in a medical and economic emergency. The last thing he needs is for the Senate to be tied up for weeks in a meaningless piece of political theater. And it is almost certainly meaningless, because I seriously doubt that 17 Republican Senators will decide to convict – that’s how many it would take, together with all the Democrats, to convict.
Third, it is the wrong tactic. The reality is that although Biden won the popular vote by a fair margin, he won the electoral college by the thinnest of margins, some 40,000+ votes. There are still 74+ million angry Americans out there who voted for Trump, and the last thing we need in our highly polarized society just now is to feed the flames already being whipped up by social media and the mainstream press by a piece of meaningless political revenge. The New York Times had it right when they called this impeachment effort “pouring gasoline on a dying ember”. Better to let Trump slink away quietly, and let the judicial system try him, as it will no doubt do, since New York at least is looking into his business affairs.
It has not gone unnoticed, even by a few liberal writers, that the very Democrats who are so incensed by the mob in the Capital were strangely silent about the BLM mob violence in Portland and Minneapolis and other places over the summer. Indeed some, including representative Alexandria Ocasio-Cortez and vice-president-elect Kamala Harris, even paid the bail of some of the protestors arrested for violence. Are they really so incensed about an attack on American democracy, as they claim, or are they really just pissed because it was their own offices that were trashed this time rather than the business of some distant person in Portland or Minneapolis?
I suspect many of the 74+ million who voted for Trump will see this impeachment effort as just a piece of political revenge, as indeed it is. And I suspect the Democrats will pay dearly for it in the mid-term elections, and perhaps even in the 2024 presidential election. Beyond that, I think the use of impeachment as a political weapon, started unwisely by the Republicans under Clinton, and now deployed twice against Trump, sets a bad precedent. I wouldn’t be surprised if Biden ends up impeached if/when the Republicans take back the House in 2022, and probably on just as flimsy grounds. We badly need to cool the political rhetoric in this nation, and this unwise impeachment effort is absolutely the wrong thing to do that.
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