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Donald Trump’s culpability is clear. The President crossed a line when he incited people to defy the electoral outcome and “walk down to the Capitol.” The attack that resulted—which Trump enflamed and let rage for hours unimpeded—represents a threat to democracy and the rule of law, and the perpetrators should be prosecuted to the full extent of the law. There is no question: Trump committed impeachable offenses.
How we should proceed is more difficult to ascertain.
Impeachment is a broader, political category of wrongdoing than more narrowly defined legal offenses. There’s an element of interpretation to “high crimes and misdemeanors.” As Gerald Ford famously put it, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
Unlike a criminal prosecution, whose focus is generally retrospective, impeachment must consider aftereffects. Foremost among them is the impact the proceedings will have on the political well-being of the nation. Exacerbating divisions will tear us apart. Bipartisanship should be our guiding star.
Richard Nixon, for all his faults, helped mend the ruptures he caused. When the ex-President’s obstruction of justice was beyond denial, a quorum from both parties unified against him. Reading the writing on the wall, he resigned. But Trump, whose pugilism knows no bounds, even when he is the clear loser, is unlikely to follow suit.
Neither will Republicans support using the 25th Amendment to declare the President unable to serve. Mike Pence deserves praise for resisting Trump’s inappropriate attempt to coerce him to reverse the Electoral College. Now he is resisting Democratic demands to coerce executive branch action via the 25th Amendment. (This amendment was enacted to deal, of course, with a disability like Woodrow Wilson’s stroke, not a President who will not accept electoral defeat.)
This is Congress’s place to act, not Pence’s. It was Congress that was assaulted on Jan. 6, and Congress has both the authority and the responsibility to respond appropriately. Even though there are only five days left in Trump’s presidency, prominent Republican leaders like Liz Cheney and Mitch McConnell have acknowledged that Trump committed impeachable offenses, and 10 House Republicans voted in favor of impeachment on Tuesday.
Whereas Trump’s first impeachment was tainted by partisanship, especially by the likes of Pelosi and Schumer, the second could go better. Joe Biden, a lifelong moderate, has a history of reaching across the aisle, and to his credit he has not prematurely jumped on the impeachment bandwagon. Biden has the opportunity to work with Republicans like McConnell to promote a thorough investigation of Trump’s role in the Jan. 6 insurrection, including damning claims that Trump, back in the White House, watched the assault on Congress with glee and that he neglected to call Mike Pence to confirm his running mate was safe from a mob chanting “hang Mike Pence.”
Democrats want to impeach and convict Trump, but they’ll find this necessarily at odds with their agenda. The proceedings are bound to prove a distraction for the incoming Biden administration. James Clyburn, the Democratic whip in the House, has suggested the House might vote for articles of impeachment but then hold them for the first 100 days of Biden’s presidency, lest a divisive Senate impeachment trial derail a successful launching of Biden’s presidency. Even delayed proceedings will interfere.
Congress should not rush to remove Trump from office unless he commits additional offenses—always a possibility with this dangerous demagogue. Trump needs to be held accountable, but we must proceed with caution lest we transform him into a martyr for the 74 million people who voted for him.
The imperative of statesmanship is to bring us together in the wake of the divisive Trump presidency. Trump is deplorable, but his supporters are not “a basket of deplorables.” Most Trump supporters reject the violence we saw on Jan. 6. Even the majority of those who traveled to Washington, D.C., while mistakenly believing that the election was stolen, went to attend a peaceful rally. In that regard they are no different than the millions of Americans who deplored the murder of George Floyd and marched peacefully in the name of police reform, only to see peaceful protests degenerate into lawless anarchy and riot.
Admittedly, the assault on the Capitol was a far more serious threat to democracy than the riots this summer. An attempt to prevent the certification of a new President strikes at the core of our constitutional system in a way that urban riots do not. Nevertheless, where we can find common ground as Americans is in supporting the rule of law and assuring a peaceful transition of administrations on Jan. 20.
We are at a turning point. A closely divided House of Representative and an evenly divided Senate stack the odds in favor of bipartisan governance. The courage shown by Mitch McConnell and other Republicans who broke with the President has prepared the ground for a politics of compromise. This is a time for magnanimity, not vindictiveness. The tone of the Biden presidency will be irrevocably determined by his response in the days to come.
Donald Brand is a professor of political science at the College of the Holy Cross.
