13th January 2021
President Donald Trump has never won a national vote.
In 2016 he had about three million fewer votes than Hillary Clinton, and in 2020 he had about seven million fewer votes than Joseph Biden.
What he was able to do in 2016, however, was to win a vote sufficient so as to obtain the majority of the electoral college – and, but for the geographic distribution of the votes in 2020, it is feasible he could have won the electoral college in 2020.
Trump, therefore, is not in this way a majoritarian – his democratic legitimacy does not rest on having obtained a majority of the democratic vote.
His democratic legitimacy rests instead on a device – the electoral college – that is provided for under the constitution of the United States.
And what the constitution of the United States giveth, the constitution can taketh away.
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The removal of an elected head of government should never be done lightly or easily.
But in any constitutional system there will always be the means by which they can be removed, other than at an election.
Ideally, of course, if the complaint about a government is essentially about its politics or policies, then it should always be a matter for an election.
That is what elections are for.
But there are circumstances other than a dispute about politics or policy merits where the removal of a government, or of a head of government, is appropriate between elections.
And in the United States, the constitution expressly provides two mechanisms for the displacement of a sitting president.
One is the the twenty-fifth amendment where, for whatever reason, the sitting president is incapable of exercising their role.
The other is the impeachment and then conviction of a president for high crimes and misdemeanours.
And theses two mechanisms are, in the case of President Trump and any other president, just as ‘constitutional’ than the electoral college that enabled Trump to become president in the first place.
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The house of representatives seems certain, at the time of writing, to vote to impeach President Trump in respect of the violent attack on Congress on 6th January 2021.
President Trump is now thereby destined be the quiz answer to the question: which president was impeached twice?
He will also be the president who was the subject of attempts to use both methods of removal – the twenty-fifth amendment and impeachment, – which also must be some sort of record.
As at the typing of this blogpost, it cannot be predicted whether the senate will vote to convict President Trump.
(Of course, whatever happens, the outcome of that vote will then seem as having been inevitable all along.)
But in one limited way, it does not matter whether there is a conviction – the very fact there will be an impeachment is a reminder that, regardless of Trump’s ability to mobilise millions to vote or to incite hundreds (if not thousands) into political violence, there is something stronger than his populism.
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The priority for constitutionalism should be true even if there was not such a thing as an electoral college and if President Trump had actually won a majority of the popular vote.
For just as constitutionalism should be stronger than populism, it also should be stronger than majoritarianism.
Being able to obtain a vote of [x] + 1 does not, and should not, confer immunity from removal from office whatever the winning candidate or party seeks to do between elections.
Such a majority vote would confer political legitimacy – but that is what it is: political.
Such political legitimacy does not translate to absolute protection against the consequences of wrongs that go further than political or policy disputes.
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Given the events of 6th January 2021, and the role of President Trump in those events, it is difficult to see why he should not be impeached and convicted.
This is the sort of situation that the power of impeachment is there for.
And there are signals (if nothing more) that a sufficient number of Republican senators may be in favour of conviction.
But even if such a vote for conviction does not come to pass, constitutionalism has not gone away.
The senate may or may not vote to convict.
The fact there is such a vote means that constitutionalism – still – is stronger than Trump and his nationalist authoritarian populism.
The challenge is now to keep it this way – for although constitutionalism has not gone away, neither will Trumpism.
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Yes, exactly. What is needed now is a clear affirmation of the primacy of constitutional law.
The best possible outcome (though perhaps the USA will not achieve it) is a rapid impeachment proceeding in the Senate, with conviction before Inauguration Day. The USA will thereby have demonstrated a thing so far left only imperfectly demonstrated in the case of Richard Nixon, namely that its legislative branch is capable through a fully formal, fully juridical, process, acting at every step strictly by the book, to end a President’s tenure before the full term has been served.
Did the Founding Fathers of the American Constitution intend to perpetuate the rule of their own class? The operation of the Electoral College seems intended to create a distortion of the results of the election.
That is precisely what they were intending. They were endeavouring to invent a polity which balanced the influence of the people at large (and remember there weren’t many democracies around to learn from, other than the ancient ones), and of the people who were politically and engaged (themselves and people like them), without creating a hereditary aristocracy, and at the same time balancing the efficiency of a federal government (eg to have military strength against Great Britain and its colony to the north and west of them) with essentially sovereign states which had been, until recently, separate colonies.
The new USA wasn’t intended to be a democracy. It is always worth remembering that the US constitution, revered though it appears to be, has been amended many times, and that the USA had a civil war only 80 years after it was originally formulated.
And if I could add:
Each of the former colonies/new states had a different form of government, from being run by a governor appointed by the king to being a proto-parliamentary democracy. Insofar as they had elections, they had different franchises – in terms of who could vote and what they were voting for.
It wasn’t feasible or desirable in creating a new federal constitution to dictate how elections should happen in each sovereign state. So how was there to be an election of a federal government (or, more precisely, how was the federal government to be chosen and how in the future was it going to be replaced)? Setting up an electoral system in which each state had a vote as a state was a clever and suitable system.
It isn’t necessarily the case that it is still a clever and suitable system.
True. They also had the example of a loathed monarchy and aristocracy which in turn were prime motivators in ensuring the people had some say in government but without wrecking their ability to contain the ambitions of very disparate states.
As I understand it (not an American or a historian, or an expert on constitutional law, but free with my opinions :) the process of selecting the president and vice-president was a matter of very considerable debate at the 1787 Constitutional Convention. There were proposals that the executives should be directly elected, but in the end an indirect process was selected, with the ideas that voters would select electors who had the knowledge to pick the best person as president, rather than making it a popularity contest. Although not spelled out, there was an expectation that individual electors would be chosen by each electoral district. In the event, electoral parties won out, Article 2 of the US Constitution was amended by the Twelfth Amendment in 1804, and most most states adopt a “winner takes all” approach. And here we are.
There has been an interesting attempt to bind states to vote for the presidential candidate with the greatest share of the overall popular vote, the National Popular Vote Interstate Compact. https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact That would only come into effect when states representing a majority of the electoral college signed up (currently at 15 states and DC, so 3/4 of the way there: they need states with another 74 electoral college votes to sign up). Not a constitutional amendment in formal terms, but it would have that effect.
The intent was not so much distortion, but moderation.
Throughout the Early Modern period there was a deep distrust of the notion of democracy. The rule of the many was thought to equate anarchy. The common man was seen as unfit to rule.
The idea of equality as proposed during the French Revolution really was revolutionary.
Even during its most democratic phase, in 1792, all male citizens were allowed the right to vote – except servants. Servants were deemed to do their masters’ bidding. They were seen as extensions of their masters.
The popular vote on a new constitution, in 1796, in the Dutch Republic, after much debate, DID include servants. Women were excluded, since it was thought they would use their feminine charms to unduely influence male voters.
You could say the US electoral college was an attempt to create an elected aristocracy – a body of of ‘the best’ from the country, in order to keep extremism at bay.
But of course that amounts to distortion.
Thanks. Worth always remembering that the American revolution preceded the French one. It had nothing to work on.
As an aside, it was the weakness of Ancien Regime France that triggered the American revolt. France had lost Canada, and therefore no longer threatened the British colonies. And given the huge expense that Britain had incurred in achieving this security for the Britons in the 13 colonies, Parliament not unreasonably wanted the colonists to pay their share……………….
Hi, just a couple of questions from me:
1. You make the distinction between removal for matters related to politics or policies, but it seems to me that it could be tricky to disentangle any cause for impeachment from politics.
Of course, the GOP have frequently characterised all attempts at impeachment as being political attempts to recontest the election by other means, even though making Mike Pence the next President is hardly a reversal of the result in 2016.
So firstly how would you demarcate the situations where a misdemeanour really is too political for impeachment from those where it is not?
2. “an elected head of government should never be removed lightly or easily” – I’m not sure I can really agree with this as a general principle, as it shifts the burden of proof from those wielding power to those holding them to account, which is surely backwards.
I much prefer the relative ease with which parliamentary systems can bring down tarnished governments with a vote of no confidence, or even by a governing party switching coalition partners as happened in Italy last year. Of course this isn’t possible in America, but I think it’s a good general principle to ensure that the powerful are kept on their toes.
I’d be interested to understand why you think the bar should be higher.
The problem with (2), as you elude to, is that the US the president is directly elected by the people (or at least, they are directly elected by the states, who invariable in modern times pass that choice on to the people). This means that, absent a good reason, to dispose them of office can be seen as anti-democratic.
Even in a parliamentary system I would argue there are problems with this. For instance, some commentators asserted that even if Jeremy Corbyn were to win one of the elections where he was the leader of the Labour Party, he nevertheless would not be allowed by the same party to form a government, and the government would be formed under another leader instead. This is of course perfectly acceptable under our system but does not feel democratic. Imagine the disillusionment for many if this happened, even if you could say it was offset by the relief of others.
To a lesser degree, although the examples of Blair to Brown and Cameron to May were fairly similar, and so did not seem outrageous, many felt that May to Johnson was a shift too far, and so antidemocratic. Although I find it hard to accept such a political and subjective distinction between okay and illegitimate myself. I suppose this intertwines with your comments in (1).
But in all, I think DAGs general reluctance is merited.
Regarding (1), I wonder if impeachment based on that recent “find me votes” phone call, which is directly damning, has a greater possibility of success, and to be judged less political if it were to.
Thanks for your comments. I don’t think the situation you referred to where a Labour MP other than the party leader would have become PM could fairly be described as “undemocratic” though, as the House of Commons (unless the discrepancy between seats and votes is substantially larger than usual) is most probably a better judge of what is palatable to the electorate than the membership of one political party ever could be.
Should also point out that in theory (again not in the US) it’s not a mutually exclusive choice – you can have a change of leadership promptly followed by a snap election. This happens quite frequently in parliamentary systems, eg Johnson in 2019
There’s certainly some merit in that view, and of the power party membership have in candidates (which is fine in itself, but doesn’t work well in a FPTP 2-party system) is an issue in itself
Whatever the outcome of a vote on impeachment, it has the advantage of allowing voters to know which Republicans put the interests of their party and President ahead of the principles of democracy. The outcome of the vote and its ramifications will set precedents which the Democrats can use in future.
The Pelosi plan seems to be to impeach Trump now but to try him in the Senate later, perhaps much later, long after he’s left office. And that, it’s argued, would be unconstitutional. See: https://www.washingtonpost.com/opinions/2021/01/12/once-trump-leaves-office-senate-cant-hold-an-impeachment-trial/?utm_campaign=wp_todays_headlines&utm_medium=email&utm_source=newsletter&wpisrc=nl_headlines (pay wall). Former US Court of Appeals judge J. Michael Luttig argues:
“The Constitution itself answers this question clearly: No, he cannot be. Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment.”
Any thoughts?
A Cabinet member, Secretary of War William W. Belknap, resigned in March of 1876. His Senate impeachment trial started on 1876 April 5. The Senate ruled 37-to-29 that it had the jurisdiction to try William Belknap despite his having already left office. – All this said, I do continue to feel, as stated in my earlier posting today, and as a mere amateur non-USA observer, that the rule of USA constitutional law would be better upheld by trying and convicting Mr Trump before his term of office ends, rather than after. Mr Harrison will no doubt concur in this feeling.
I certainly agree that it would best to try and convict while Trump’s in office, but that seems impossible, not least because the Senate won’t make it happen. Therefore we can be pretty certain that the issue raised by Luttig will ultimately be decided by the Supreme Court. And what that means is that, far from fading from public life, Trump will continue to grab the attention of headline writers and news readers — and the MAGA crowd — for a long time to come. Maybe he would anyway, but this guarantees it.
Luttig’s argument is extraordinarily disingenuous.
* The Senate proceeded with the impeachment trial of Secretary of War William Belknap in 1876, even though Belknap had already resigned from office. Although the Senate did not ultimately vote to convict Belknap, it did vote that it could proceed with the trial notwithstanding Belknap’s resignation
* The Constitution provides that the Senate can vote to bar an impeached person from future federal office. This provision would be pointless if the subject of impeachment could evade it by resigning.
That is just one former judge’s opinion, not a consensus view (and it would be interesting to know which provision of the Constitution he relies on).
It can be argued that the Constitution itself is silent on whether a President can be impeached after leaving office, so it’s Uncharted Waters – which would potentially keep in play the Senate’s discretion after any conviction to disqualify Trump from holding office in future. This may be achieved by a simple majority by convention, which the Democrats will have in due course.
Good article. When people talk about a ‘Democracy’ much of the time the listeners have to apply their own definition. Without constitutional rules any ‘Democracy’ would be so unstable as to be not worth having. Two nitpicks.
First, Trump is an elected head of state as well as head of government. It doesn’t affect the thrust of your post, but usually it is easier (and more overtly political) to remove heads of government than heads of state. The US procedure, whilst wearing many clothes of a judicial one, is really de facto political.
Second, Art 25 depends on the V-P moving. As far as I am aware Pence has done nothing and said he will do nothing on that front. I am not sure that the House’s Resolution asking Pence to do so constitutes an ‘attempt’ to use Art 25 so much as a request which, despite being made by the House, has no force in law or otherwise.
In this country – does this equate to a Vote of no confidence?