The significance of the second impeachment of President Donald Trump is not that so many were in favour but how many were against

14th January 2021

Yesterday the president of the United States was impeached.

That is a sentence that should be neither typed nor read very often, as an impeachment is – and should be – an extraordinary thing.

The power of impeachment exists in a constitution when ordinary political processes are unable to address a particular problem.

This is only the fourth impeachment in the history of the United States, though the second time it has happened to President Donald Trump.

Any impeachment is extraordinary and rare – but what, if any, significance did yesterday’s vote of the house of representatives have?

Did the vote signify either the start or the finish of some thing?

Or was it more an illustration of something already in existence and not likely to go away soon?

Or does it not have any real significance or even illustrative value – and so was just another extraordinary political event to join the clutter of other extraordinary political events of the last four or five years?

*

An impeachment vote, of course, is only one step in the constitutional process of removing a president.

There still needs to be a trial before the senate, and the senate will then either convict or acquit.

A conviction would, of course, be significant.

It would be the first conviction of a president, the previous three impeachments each having ended with an acquittal.

And if the conviction happened before the end of this presidential term then it would also be the first removal of a siting president.

Such an outcome would have a profound significance, being the first and only example in the history of the United States of the constitution being exerted so as to expel the holder of the presidential office.

A conviction by the senate would be the first time the deeper magic of the constitution has been used to crack the stone table of the presidency.

But.

For such an outcome there are two further conditions: (1) the senate has to vote to convict and (2) that vote has to happen in the next six days.

Both of these conditions are capable of being fulfilled, but both currently seem unlikely.

Of course, a senate that recently was able to confirm the appointment of a supreme court judge at speed should be able to deal just as urgently with an impeachment trial.

The indications, however, are that the senate will not commence any trial until 19th January 2021, and that would mean any trial would go beyond the inauguration of the new president, Joseph Biden.

And, unless the senate is back in session sooner than the 19th January 2021, the significance of yesterday’s vote will not be that it lead to the removal of a sitting president.

The stone table of the presidency will remain uncracked. 

*

But what of a conviction after Trump leaves office?

That could still happen even though his term of office would be unaffected.

Such a conviction would (or could) result in Trump’s disqualification from holding and enjoying ‘any Office of honor, Trust or Profit under the United States’.

And this would have the practical consequence of preventing Trump from being elected ever again as president.

(Though similar outcome could be achieved perhaps by a formal holding of some kind – legislative or judicial – that Trump had engaged in insurrection and was thereby barred under section 3 of the fourteenth amendment.)

Such a conviction would be significant – as it would show that constitutionalism still prevailed over the abuse of presidential power.

It would signify that what Trump did (and did not) do on 6th January 2021 was constitutionally unacceptable, and that there should be serious consequences of that constitutionally unacceptable conduct.

But even this profound outcome still depends on a conviction after a senate trial.

*

For both the possibilities set out above, the significance of the impeachment vote is that it has started a process that may, or may not, have a profound outcome.

But what was the significance, if any, of the impeachment vote in and of itself?

What was certainly notable about the vote was that it demonstrated both Democratic unity and Republican division.

Most of the speeches of those on favour of impeachment, and the statements of the ten Republican representatives who voted in favour, matched the gravity of what happened on 6th January 2021.

And that the vote was bipartisan – so bipartisan that Republican support reached double-figures – showed that the president’s misconduct was so serious that it transcended normal partisanship.

This signifies that Trump’s unconstitutional behaviour no longer has the solid support of the Republican party bloc.

But.

At least as significant, if not far more so, was that so many Republican congressmen and congresswomen were steadfast in opposing impeachment, despite the events of last week.

The impression one formed watching the speeches of Republican representatives was that there was nothing – nothing at all – that Trump could do that would be so wrong that it would lead to his impeachment.

That whatever Trump did or not do would always be beyond the reach of constitutional mechanisms.

That when Trump and constitutionalism conflicted, then Trump would prevail.

A number of Republicans expressly dismissed the impeachment as merely an exercise of Democrat partisanship.   

And by doing so, they flipped from partisanship within a constitutional framework to the hyper-partisanship which disregards and denies the primacy of constitutional norms.

This means that rather than the vote signifying either the beginning of a process or the end of a presidency (or of a political career) it was more of a stark illustration of an ongoing problem.

The problem of hyper-partisanship, which is as much a threat to constitutionalism as the storming of the Capitol. 

This hyper-partisanship is, in turn, in the service of populist authoritarian nationalism – the very politics that is perhaps most in need of being constrained by constitutional norms.

And so the ultimate significance of yesterday’s vote to impeach the president may therefore be not so much that there was bipartisan support, but that there were so many in opposition and on what basis.

*****

If you value this daily free-to-read and independent legal and policy commentary please do support through the Paypal box above or at Patreon.

Suggested donations are of any amount as a one-off, or of £4.50 upwards a month on a monthly profile.

A donation will enable this daily to carry on for you and for others to read and share.

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.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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.

18 thoughts on “The significance of the second impeachment of President Donald Trump is not that so many were in favour but how many were against”

  1. Even allowing for the possibility of an impeachment for Trump, the whole process looks like a token gesture.

    My reasoning is that despite all his talk, I can’t see Trump standing for election again; even if the Republican party are insane enough to elect him as a candidate (I have strong doubts about that), then father time will probably intervene (he’ll be 78).

    The problem with Trump is not now the man himself, but the malignant influence he has had on political discourse on what can loosely be called western democracy. You only have to look at the chancers masquerading as a government in Westminster to see that. Like Thatcher, Trump may be gone, but his stamp and way of doing things are here to stay. that’s the worst thing.

    1. That is true, his ‘legacy’ may alter politics in the USA and beyond. But we should also not assume this character would not run again as an independent. If he has the support in 3 years time he could decide to run, and then benefit from the majority of voters splitting between Rep & Dem, leading to a second term as he got enough electoral college votes (I’m not certain on the numbers, but never say never on this).

      We will of course be seeing a very old president, and have most sane people seeing his death as the only way out of a nightmare second term. That can’t be good for democracy so I believe his chances of a second term need removing now, not when it’s too late.

  2. If it had been a secret ballot wouldn’t the result have been significantly different? A view put forward on Radio 4 today this morning Jon Sorpel I think.

  3. Let’s say the 4th Feb
    Speech by Donald Trump.
    Today after the failed second attempt by the deep state to deny the patriots of this great country the right to choose their elected leader I announce my campaign to lead and serve once again this great country. I believe all patriots and those opposed to the actions of the deep state will recognise and support my campaign. Let us together renew our great march to freedom and democracy..

    I hope this is nonsense and it or something like it does not come to pass.
    Drain the swamp. Drain the swamp.

    1. Or “Because the corrupt courts and certain corrupt Republican state legislatures, complicit in stealing a landslide victory, deny the patriots of this great country….”.

      Impeachment or not he and more dangerously his followers are not going away.

  4. This is only the fourth impeachment *of the President* in the history of the United States (Jackson, Clinton, Trump, Trump; Nixon resigned before he was impeached; Buchanan was found to be corrupt, but not impeached). Quite a few judges have been impeached, convicted, and dismissed from office (some acquitted, some resigned before conviction).

    One of the problems with a swift impeachment is that I suspect investigation by the law enforcement agencies will eventually uncover convincing evidence of how far this insurrection attempt was organised in advance and coordinated on the day.

  5. Thanks for yet another interesting blog, DAG.

    Is it 100% certain that Trump cannot be tried as an ordinary citizen once he is no longer president for crimes allegedly committed while he was president?

  6. People ‘believe’ whatever suits them or pays their wages. Then the 2024 elections are not that far away and the problems in American society are still there. Trump tapped into a deep well of electoral support, a politician would be very foolish to throw that away – keep the hatred going, it buys votes.

    With that in mind it seems hardly surprising a goodly number voted against impeachment. Donald is a man you want p***ing out your tent, not in. Then we ask is an impeachment trial likely to happen – possibly not – and any competent defence lawyer ought to get Donald off anything serious. From that might follow Donald riding again in 2024, not perhaps as president but banging the drum and supporting some other schmuck.

    To my mind the question is which Republicans voted for impeachment and why – not for honour surely. They must see their political bread buttered in some non-Donald universe. This seems risky to me. There may well be Republicans who detested Trump but his vulgarian politics brought home the bacon, they rode on his coat tails. So whose coat tails are they going to ride in 2024? Surely they don’t intend to sit 2024 out.

    1. “and any competent defence lawyer ought to get Donald off anything serious”
      Well, he seems to have trouble finding competent lawyers, so wouldn’t bet too much on that.

      “his vulgarian politics brought home the bacon”
      Did they? The Republicans have lost all three of House, Senate and Presidency under Trump.

      That said, I agree that there will remain a very strong, noisy and active pro-Trump element and a large number of House Republicans owe their jobs to this. Will they stick with “Trumpism” once the dust of the Trump presidency has settled, and risk being pushed out from the left, or abandon it and risk being pushed out from the right? Those who voted for impeachment have made their bed – a number of others may be biding their time.

      1. Lawyers considering representing Trump (or his organisation) would be well advised to ask for funds on account of costs before acting.

        If he is reluctant to do so, that might explain the spectacular performance of his legal representatives.

  7. “Such a conviction would (or could) result in Trump’s disqualification from holding and enjoying ‘any Office of honor, Trust or Profit under the United States’.” – Disqualification is subject to a separate vote from conviction, and one which requires only a simple majority. It’s never so far happened in an impeachment process without a conviction on the main charge, but that’s not to say it can’t. I’d be interested to see an attempt, though I don’t have much hope that the Trump-packed Supreme Court would endorse it.

    1. While the votes to convict (and remove from office) and to disqualify from holding office are indeed distinct, that does not mean that a vote to disqualify is freestanding. Most legal commentators appear to believe that disqualification entails conviction first. A minority view is that a vote can disqualify Trump even if he is not convicted (which would have no precedent). But it’s not a settled point so let’s wait and see…

  8. There has always been a group within the Republican party that detests Trump and all he stands for. Whilst Romney gets the most Press coverage in the UK, it was Dick Cheney’s daughter who was leading the charge in the Congress. It will be interesting to see if the Bush family can round up enough votes in the Senate to ensure that Trump is banned from ever standing for elective office. It will be bad news if they cannot.

  9. Trump benefits, to the disadvantage of most of us, from the conflation or merging in one person of the roles of head of state and head of government. The US president is elected on a party political platform to run a government. But having arrived in office, he is immediately swathed in the monarchical pomp, and accorded the deference, due to the head of a state that sees itself as the most important in the world. If Trump was the equivalent of a mere prime minister, he’d have been jailed long ago.

  10. There are media reports that on the 5th of January, several Republican Congressmen and women actually gave a guided tour around the Capitol Building to those who would go on to storm the legislature the very next day. (CCTV footage reportedly backs this up.)

    This was effectively a reconnaissance mission in advance of the attempted coup, and may represent the prior collusion of a complicit faction of the Republican Party legislature.

    If that is true, then the situation is even more serious than just a typical case of the parties voting along partisan lines.

  11. I agree, David. I can see why many wouldn’t want to vote against their party but why were there not a substantial number of abstentions? And, worse, I heard some of them interviewed today fixedly and apparently sincerely claiming Trump has only been expressing opinions, instead of manipulating vaste swathes of people for generations to come.

  12. Well said. I’m also astonished that they didn’t add to the impeachment charge Trump’s attempt on record to persuade the Governor of Georgia to “find” a few thousand more votes for him.
    That would surely merit impeachment on its own, as it’s hardly upholding the Constitution!

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.