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.
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.
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.
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.
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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