Impeachment exists for a reason – the arguments for and against the second impeachment of Donald Trump

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.


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26 thoughts on “Impeachment exists for a reason – the arguments for and against the second impeachment of Donald Trump”

  1. As I (Irish) understand it, impeachment requires a two-thirds majority of the Senate to convict on the charges; however, disqualification is a separate matter rather than being concomitant with conviction, and multiple precedents have established that it requires only a simple majority vote. That seems to me to strengthen the case for re-subjecting Trump to the process, as the importance of preventing the recurrence of such conduct on his part remains and arguably (note I say arguably) outweighs the dangers of perceived partisanship.

    1. The Justia website comments on the separability of disqualification from removal in impeachment proceedings pursuant to Article II, section 4 of the US Constitution as follows:

      “The plain language of section 4 seems to require removal from office upon conviction, and in fact the Senate has removed those persons whom it has convicted. In the 1936 trial of Judge Ritter, the Senate determined that removal is automatic upon conviction, and does not require a separate vote. This practice has continued. Because conviction requires a two-thirds vote, this means that removal can occur only as a result of a two-thirds vote. Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction. Although an argument can be made that disqualification should nonetheless require a two-thirds vote, the Senate has determined that disqualification may be accomplished by a simple majority vote.”

      1. To clarify, the Senate would decide whether to exercise its discretion to disqualify from office after conviction, although one legal commentator contends that the Senate would have the authority to vote only on future disqualification, particularly if Trump has already left office.

        Interestingly many legal commentators opine that resignation does not preclude impeachment, which could keep disqualification in play.

  2. The careful and credible analyst Rachel Maddow at MSNBC asserts a legal thesis in a YouTube posting under the headline “For Republican Senators, Impeaching Trump May Be As Simple As Not Showing Up”. Her assertion is that what is needed for conviction is not a two-thirds majority of the senators, but merely a two-thirds majority of those senators who decide to be present in the chamber. Does anyone in this present DAG readership know whether Ms Maddow’s assertion is accurate?

    1. The Constitution says “And no Person shall be convicted without the Concurrence of two-thirds of the Members present”. I don’t profess to be any expert on US law but the plain meaning would seem to be that as long as the senate is quorate, its 2/3 of those actually attending.

    2. It appears to be: (citing Article 1 s. 3 – 2/3 of members present). I’m not sure what the quorum requirements for an impeachment trial are. Critically, however, no impeachment trial could commence until 20 January at 1PM unless the entire Senate (all 100) agreed to substantive business – per McConnell’s recent memo. At that point the Democrats will have control of the senate processes and there is precedent for holding the trial after an official has left office.

      Maddow has an Oxford DPhil and an excellent reputation. This is the kind of thing I’d expect her to get right.

  3. Whilst I agree that what Trump did is worthy of impeachment, the fact remains that more US citizens voted for him than any other Presidential candidate other than Joe Biden.
    If Biden is to have any chance of beginning to heal the massive divide in the USA, I think it will be that much harder if the beginning of his term is dominated by proceedings against his erstwhile rival. It would also keep Trump in the limelight. It may be that the best way of dealing with a narcissist is to pay as little attention to him as possible.
    So pragmatically, I think the best strategy is to allow the 11 days to elapse.

    1. So “healing the nation” requires pandering to the minority who voted for an unindicted co-conspirator, presumably in case they throw their toys out of the pram?
      Why is it that the fragile sensibilities of Team Trump have to be indulged so? Surely after four years of right-wing governance, fawning over Vladimir Putin, and a third of a million covid-related deaths, it’s the centre-left majority who have just cause to feel in need of the healing balm of equality before the law?

  4. It must be worth impeaching a) to highlight Trump’s evil-doing, b) to stop him ever standing again and c) to deprive him of post-presidential benefits – even if there were some swingback on the Democrats for impeaching.

    1. And to go at least some way towards re-establishing America’s reputation as having a government of laws, and not of men?

      1. But one can’t have the laws without the men! Also, so far, the laws have held and are holding despite Trumpians.

  5. The legislators have to be seen to be doing the right thing to protect American democracy, whether by impeachment or 25th Amendment, or if these avenues fail, by pursuing Trump in however their law allows. The last months of his presidency have writ large the danger he presented the USA, and the last week has shown how he intended following through.


    Like the conditions that produced Brexit in the UK, disaffection in the US is an issue that also must not be ignored. [And there are obvious parallels with the conditions in Germany post WW1, if on a lesser scale.] If Biden and his successors are to defuse this, they must address somehow that disaffection. The disparities in the US have to be faced squarely. Racism and white supremacy movements are an indication of the type of aggrievement in societies where large numbers of people feel excluded from mainstream society. They are born of fear. No excuses being offered here, btw, but if we look to the UK, or to the Weimar Republic we can see that similar impulses were at work. Fear of the other, feeling disempowered, loss or lack of status, etc.

    Biden may have the insight to work towards healing this. I hope so, because if it isn’t addressed, little will change.

  6. A very good summation of the dilemma, and there does not seem to be any easy solution.
    In principle a more attractive solution would be for the politicians to stand back and let the matter be dealt with under the criminal law – but presumably Trump is immune from prosecution while he remains president? Assuming he doesn’t purport to pardon himself before he goes, would he become susceptible to prosecution from 20 January onwards? Particularly if some of those who actually invaded the Capitol are charged, it would seem very strange if the man who incited them to do so remained beyond the reach of the law.

  7. I invite you to read sections 2 and 3 in article one of the US Constitution. For example, on trial by the Senate, “no Person shall be convicted without the Concurrence of two-thirds of the Members present”.

    Impeachment is a peculiar combination of political and judicial processes. For example, in discharging their duties to determine an impeachment case, the members of the Senate are on oath (or affirmation) to “do impartial justice according to the Constitution and laws”. You could argue that some senators breached those oaths in acquitting Trump last year.

    The only punishment is removal from office, and disqualification from holding “any Office of honor, Trust or Profit” in future. Serious questions: In the past, impeachment proceedings have not continued once the accused person has resigned, but could impeachment proceeding continue after Trump either resigns or his term ends in order to disqualify him from standing again? If not, could a fair and proper impeachment trial be conducted in 10 days or so?

    Impeachment does not prevent prosecution for any state or federal crimes that may have been committed. Trump may still have a plan for manufacturing a presidential pardon for himself and his family and close associates. That may require him to resign first anyway, so Pence can pardon him. On the other hand his world view might not accept he has done anything that needs to be pardoned.

    The situation could become very ugly if Biden and the Democratic Congress instigate investigations into corruption and other misdemeanours under the Trump administration, in an attempt to actually drain the swamp. Lock him up.

  8. It should not be either/or but both the 25th Amendment and impeachment. And it appears there may be a whole slew of other prosecutions waiting until Trump is no longer President to come forward as well.
    But none of these will be enough to prevent a neo-Trump coming forward to stir up and then ride the wave of ignorance and hatred that brought about the desecration of the Capitol. Much, much more to be done both in buttressing the law and in showing the xenophobia and agitation of irrational hatreds for what they are.

  9. Another alternative would be to wait until he leaves office and charge him under the D.C. code for inciting a riot (Title 22, Subtitle I, Chapter 13 disturbances of the public peace). This is D.C. code and not affected by presidential pardon as far as I can make out (DC is special though) and works like State law. Possible jail time of up to 10 years as 5 people died and damage is >$5000. Alternatively, SDNY are likely to proceed with their investigation after he leaves office. The danger of impeachment and acquittal could be double-jeopardy and may bar DC from bringing charges of their own?

    Extract from the referenced Chapter 13
    a) A riot in the District of Columbia is a public disturbance involving an assemblage of 5 or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons.

    (d) If in the course and as a result of a riot a person suffers serious bodily harm or there is property damage in excess of $5,000, every person who willfully incited or urged others to engage in the riot shall be punished by imprisonment for not more than 10 years or a fine of not more than $10,000, or both.

  10. “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.”

    Based on what I’ve read elsewhere, it’s my understanding that Trump could contest such a move by sending a written letter to both chambers of Congress asserting that he is indeed fit to continue to hold office. In such a scenario, it would take a two-thirds majority vote in both houses of Congress to discharge him. (I was able to confirm this at multiple websites, for example:


    “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.”

    Nice touch :)

  11. Thank you for this very interesting article. I have a question which I’m hoping you might be able to help with…..if impeachment proceedings are instituted (and reach a successful conclusion) would this prevent (or render invalid) an outgoing president pardoning himself or indeed others who may be involved in the behaviour which is has prompted the impeachment?

  12. An excellent informed summary, I was of the view that just let the dozen or so days pass and the problem disappears. But there is a reason not to let him get away with it. To deter future despots from trying the same thing perhaps in a less half-hearted way. And as David points out convicting him debars him from future office. If he cannot hold the direct reigns of power ever again, that might be enough for him to decide it’s over.

    One thing is for sure, or almost sure, I feel and always did, that this man has to be stopped, he has not the will to stop himself!

  13. I think the real reason to proceed with impeachment is pour encourager les autres. The next demagogue who comes along wanting to throw the USA off the rails for personal gain needs to know what if things go wrong for him, they will go VERY wrong, and he won’t just get to walk away.

  14. The 25th Amendment does not appear to be a feasible route for the removal of Trump, if for no other reason than that the timelines to the full completion of process under Section 4 will exceed 20 January 2021.

    Section 4.

    Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

    Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

  15. it is possible to interpret the actions of the mob on the 6th of January as not an attempted coup. The mob and to an extent Trump was trying to get the election re-run, in exactly the same way that a football crowd invade the pitch to try and get the game suspended and replayed.
    Had Trump incited a coup attempt he absolutely should be impeached. Inciting a mob to “force” a re-run of the election does not in my mind reach the threshold for impeachment.

    I do not doubt that Trump should never have been elected to any official position but the democratic process must be upheld.

    1. So the election keeps being re-run until he gets a result that he likes? That’s what they do in banana republics. And you forget the votes that he was caught on tape asking to be ‘found’ to overturn the legitimate democratic result in one state.

      It may be possible to interpret the actions of the mob in the way you seem to be choosing, Anthony, but as he had already tried various other ways to get the election results overturned, this latest action – especially given the highly-charged language with which he whipped up his followers, both beforehand and on the day – is difficult to interpret in any other way than as a coup.

      Oh, and let’s not forget the pipe bombs, other explosives, ties, taser guns, etc. that were present when the mob broke into the building. The intent of at least some of those present was deeply sinister.

  16. Pedantic: Congress does not (re-)certify the electoral college votes made by the various states; they ratify them.
    Saying that Congress certifies them implies a control of the process that Congress does not have.
    Media outlets in the USA have gone to lengths to note this during this time.

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