This blog post was written by Rick Shenkman, the founder of George Washington University’s History News Network, and the author of Political Animals: How Our Stone-Age Brain Gets in the Way of Smart Politics (Basic Books).
A friend writes: "I oppose impeaching Trump. Impeachment is the Constitution's procedure for removing a president from office when his/her actions are deleterious to the nation. If the noxious president is no longer in office, the impeachment mechanism is no longer called for."
He adds: "Barring Trump from running again prohibits seventy million people from voting for their candidate of choice. Several score senators do not have the right to overturn the wishes of millions. Any democracy worth anything must give its citizens the right to drive the country off a cliff."
Let's begin with your last line, which I find disturbing in the extreme. It presupposes that what the majority wants is what they should get, no ifs, ands or buts. I reject this assumption. If a majoirity of Americans suddenly decided to revert to the practices of segregation I wouldn't want them to get their way and I certainly don't believe they'd have the right to do so. The framers designed the Constitution expressly to block majority opinion in a variety of ways in order to protect minority rights. It was well established in 1789 that popular opinion is often fickle. Nothing that has happened in the intervening period suggests that the founders operated in error. I for one wouldn't want to live in a society where the majority always get their way.
Nonetheless I favor democracy. I hold this position for two reasons: 1.) Democracy in principle is virtuous. It gives people a stake in their government and when it’s responsive enhances social trust. 2.) Democracy is likelier to give us better results than, say, dictatorships, given that democracies are self-correcting. Though I don't believe that voters are rational actors, when leaders make serious mistakes they are usually thrown out of office.
That said, democracies can be well-designed or badly designed and as a result may not give us good government despite the tendency toward self-correction. Ours is a case in point.
As a result of the undemocratic Senate and the undemocratic Electoral College our system now rewards the GOP. This bias in favor of the GOP inhibits self-correcting mechanisms. The GOP can fail and still be rewarded with power. Trump came remarkably close to winning re-election despite an unprecedented string of failures because of the GOP bias inherent in the Electoral College. As Andrew Prokop notes, "a shift of just 48,000 votes in AZ, GA, and WI would have resulted in a 269-269 tie." And a tie would have thrown the election into the House of Representatives, which, voting by state, would have given Trump the election.
Given the weaknesses of our system it behooves the Democrats to take steps to remove the threat of a second Trump administration. On this ground alone I’d favor an impeachment trial.
But there are multiple reasons to favor impeachment and conviction.
Impeachment carries two penalties. 1. Removal from office. 2. A ban on holding office in the future. The first is evidently the more serious penalty. That’s why it takes a 2/3rds vote in the Senate to convict. The second penalty only takes a simple majority vote in the Senate. But both are included in the Constitution. You have discounted the value of the second feature for some reason, unexplained.
The founders did not say a president is subject to impeachment and conviction except for anything they can get away with during the final months of their term. Yet your approach would in effect amend the Constitution to limit impeachment and conviction in just this manner.
And those final months in a president’s term are likely to be the most fraught wherein he is likeliest, if he is so inclined, to break the law and our democracy. For it is just then that he will be fighting for his political life. To let Trump off because he broke faith with his office in the final months of his tenure would set an unfortunate precedent an unscrupulous successor would be sure to take advantage of. Since the GOP is likely to give us another Trump-like figure in the near-future we have to be careful about the precedents we are setting.
The founders fully recognized the usefulness of the impeachment of former officials. As Princeton Professor Keith E. Whittington explained in the Wall Street Journal recently:
"For the Founders, it would have been obvious that the 'power to impeach' included the ability to hold former officials to account. The impeachment power was imported to America from England, where Parliament impeached only two men during the 18th century, both former officers. No U.S. state constitution limited impeachments to sitting officers, and some allowed impeachment only of former officers."
Finally, should the people vote for a second Trump administration in 2024 and get it as a result of the GOP bias in the Electoral College you would likely see a civil war ensue or at least raise the possibility of one. Certainly, the chances of a civil war would not be zero. Why would you take the risk?