9th January 2021
‘Impeachment’ and ‘indictment’ are sister words, sharing the suffix ‘-ment’, and they describe two ways by which a person can be tried and then either convicted or acquitted.
One practical difference (at least in modern times) between the two is that impeachment is usually a political process, while a trial on indictment is a matter of criminal law.
And one effect of this distinction is that if a sitting president of the United States is immune from prosecution in the criminal courts, there is always the alternative route of impeachment.
There are only eleven days before this presidential term ends, by automatic operation of law, on 20th January 2021.
The electoral college vote has been certified by congress and so there is no constitutional impediment (as far as this English lawyer is aware) to Joseph Biden becoming president on that day.
The question is whether Donald Trump should continue to be president in the meantime, given what he did and what happened on 6th January 2021.
As eleven days is such a short period, there is merit in the view that we should just wait it out – especially as he no longer has access to his Twitter platform (and the implications of such a ban was discussed on this blog yesterday) and the speaker of the house of representatives has has assurances on the president’s access to the nuclear codes.
And there is something also to be said that it would still be wrong, even now, to in effect override the result of the 2016 election – there was a democratic process and Trump as president was the result at the end of it.
Impeachment exists in the United States constitution for a reason.
And if a president inciting a mob to invade Congress so as to disrupt the certification of the electoral college vote (in what this blog avers was an attempted coup) does not fulfil the requirement of a high crime and misdemeanour, then it is difficult to imagine what else would do so.
Even with only eleven days to go, such an extraordinary event should not go unmarked and shrugged-off.
Impeachment and conviction can also disqualify Trump from holding office again.
(And so, in respect of the presidency, such disqualification would place Trump in the same position as if he had not been born in the United States.)
On this basis there is a strong – if not compelling – case that Trump should be impeached and convicted – both in terms of what has happened and of the future.
You do not sustainably solve a problem caused by hyper-partisanship with more partisanship.
And so any impeachment and conviction should ideally be on a genuinely non-partisan basis – and not just the Democratic bloc with a few Republicans.
Here the United States constitution is helpful – as a conviction by the senate has to be with the ‘concurrence of two thirds of the members present’.
Therefore there would have to be a substantial number of Republican senators in favour – but even if there were sixteen or so such Republican senators, it would still savour of partisanship, unless the Republican congressional leadership were also in favour of conviction.
This is not to say that there should not be an impeachment and conviction if enough Republican senators are in favour – sometimes you just have to do the right thing anyway – but a warning that such an exercise will not be the once-and-for-all end of the problem of Trump and Trumpism.
But, then again, there may not be any solution to that problem.
There is another way that could be employed to displace Trump.
The twenty-fifth amendment provides an elaborate mechanism by which the vice president and members of the cabinet can declare that the president is unable to discharge the powers and duties of the office.
In these circumstances the vice president will become the acting president.
This approach has the attraction of being inherently non-partisan – as those making the decision are Republican politicians – and also the attraction of pragmatism – as it deftly yanks Trump away from exercising the powers of the president.
The problem, however, is that it is not – at least not directly – a mark against the encouragement of the attempted coup, and nor does it disqualify him from future office.
(Or Trump could – like Nixon – just resign in an attempt to pre-empt any of the above – but it is hard to imagine Trump bringing himself to sign that piece of paper.)
Of course, whatever does happen will then look as if it were inevitable all along.
But whether or not Trump is impeached and convicted, there will still be two truths.
First, impeachment is there for a reason.
And second, what the president did on 6th January is such a reason.
If you value the free-to-read and independent legal and policy commentary please do support through the Paypal box above.
Suggested donation of any amount as a one-off, £1 upwards per post found useful or valuable, or £4.50 upwards on a monthly profile.
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.
Each post takes time, effort, and opportunity cost.
Or become a Patreon subscriber.
You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.