President Donald Trump and Vice President Mike Pence, Jan. 4, 2021.
Photo by Joyce N. Boghosian, courtesy The White House.
Republican lawmakers who argue that impeaching President Donald Trump in the final days of his term is not worthwhile have it backward: This is the most worthy impeachment ever, for reasons that have little to do with Trump.
Trump will be the defendant, assuming the Senate takes up the charges against him. But since he most likely will have been out of office for weeks or months by that time, it is America’s carefully crafted system of government checks and balances that will truly be at stake. Republicans have just as much reason as Democrats to defend it, or maybe more. They would see this if they look past their next primary election.
In their revulsion against the perceived tyranny of King George III, our country’s founders divided power between the federal government and the states. Within each level of government, power is further divided between an executive, a legislative and a judicial branch.
Elections are conducted by the states, even for federal offices. In elections for president and vice president, it is the states who choose their own members of the Electoral College. These electors then cast their votes for those offices’ candidates according to the pledges they made to voters. Trump won the presidency in 2016 by claiming a 304-227 majority in the Electoral College. He lost it in 2020 by coming out on the short end of nearly the same score.
Trump had every right to take his claims of fraud and other election law violations to the judicial branch, at both the state and federal level. He did, more than 50 times. All his claims were rejected (except one minor case in Pennsylvania that did not change the outcome in that state). He lost the election, despite his incessant protestations to the contrary.
But on Jan. 6, he took things too far. First he demanded that Vice President Mike Pence, in his separate constitutional capacity as president of the Senate, disqualify some opposing electors that the states had chosen and which the courts had declined to disturb. Had Pence agreed, he would have transgressed the constitutional privilege of the states to choose those electors, and of the courts to adjudicate any disputes about those choices. Pence appropriately refused.
Trump thereupon held a rally – as was his right – but dispatched his supporters to Congress in an attempt to interfere with the legislative branch as it carried out its duty of accepting and recording the states’ electoral votes. This led to an assault on the Capitol that left at least five people dead.
Even if you credit Trump’s claim that he neither anticipated nor advocated violence at the Capitol, his extrajudicial attempt to thwart an election he lost was an assault on the constitutional structure of America’s government, and a betrayal of his oath and obligations. On that level, his impeachment by Congress is a defense of democracy. And if you discount Trump’s self-serving claims about his intentions at a rally where his personal lawyer Rudy Giuliani called for “trial by combat,” his impeachment by Congress is an act of institutional self-defense.
For the benefit of any Republicans who do not see where this line of reasoning is going, the Trump-inspired assault on Jan. 6 was as much an attack on the Electoral College as on Congress. There are many Democrats who would love to get rid of the Electoral College altogether and choose presidents via direct popular vote. Such a system would have put Hillary Clinton in the White House after the 2016 election. Heaven knows what would have happened in 1992, when Bill Clinton won only 43% of the popular vote in a race with a strong third-party candidate. Would we have had a presidential runoff?
Besides the near-term disadvantage for Republicans, think of the potential for a state’s malfeasance to create nationwide mischief. Imagine a race in which the national popular vote is closely divided. In 1960, John F. Kennedy received 49.72% of the vote, while Richard M. Nixon got 49.55%. Suppose we have a popular vote system, and a highly partisan state like California does something corrupt or merely odd, like disqualify a candidate who refuses to release his tax returns. (California proposed to do just that, in a move aimed at Trump, before the state Supreme Court ruled the law invalid in 2019).
With the Electoral College, it didn’t much matter (except in down-ballot races) whether Trump appeared on the California ballot, since he had no real chance of winning that state anyway. But in a direct popular vote, any sort of shenanigans could dictate the result for the entire country. In a country politically divided along geographic lines, a direct popular presidential vote could be a race to the bottom – or could result in federal control of federal elections.
Picture an incumbent president wielding the electoral machinery that will determine his or her own reelection success. We should shudder at the thought.
Our founders bequeathed us a system that avoids such chicanery. It does not mean we have perfect or flawless elections. It does not mean fraud or illegality never happens. But it means the parties who consider such claims do not have a direct stake in the outcome.
Trump dispatched his supporters to Capitol Hill for the worst of all possible reasons: to try to keep himself in power. That unavoidable fact dwarfs the rationales behind the three prior presidential impeachments. Andrew Johnson was a Southerner who got crosswise with northern Republicans about the treatment of the South after the Civil War. Bill Clinton was accused of lying to the courts about his sexual conduct with a White House intern. Trump, in his first impeachment, was charged with trying to bully Ukraine into benefitting his own reelection by investigating eventual opponent Joe Biden.
None of these “high crimes and misdemeanors” come close to the gravity of assembling a mob to usurp the states and defenestrate the Congress in an attempt to retain the presidency. Trump’s mere refusal to publicly accept defeat comes close to disqualifying him for his office. Any tangible action to hold on to that office in spite of that defeat would have crossed the line. He went far beyond it.
Yes, there are other mechanisms short of impeachment. Trump could resign, which would mean at least tacitly accepting some responsibility, but there is no sign this is about to happen. Pence and the Cabinet could have invoked the 25th Amendment to remove him; this facility allows the executive branch to correct the excesses or address the incapacity of its own leader. But Pence has opted not to pursue this course.
It thus falls to Congress to defend our system. Trump’s own fate is scarcely relevant. History will judge whether this generation of lawmakers properly stood up for the notion that power is won at the ballot box, and disputed outcomes are not settled in the streets.